-- THE ARCHIVE --

MALAYSIA
Judicial CP - November 2014

The Borneo Post, Kuching, 4 November 2014, p.6

Two armed robbers get jail, whipping

KOTA KINABALU: The Sessions Courts here yesterday jailed two
men and ordered them to be whipped for committing armed robberies.

In the first case, Sukarman Kadir, 31, was sentenced to nine
years' jail and ordered to be given three strokes of the cane for
robbing a 38-year-old woman of her belongings at her house in
Telipok near here on August 15.

Deputy public prosecutor (DPP) Chow Siang Kong told judge
Azreena Aziz that the accused had entered the house of the victim
and demanded for her belongings before fleeing the scene.

The prosecution also said based on information provided by the
victim and fingerprints of the accused obtained at the crime
scene, the accused was later arrested.

Chow said one of the belongings of the victim which was her
cellphone, was discovered as the accused had given it to his aunty.

In the proceedings yesterday, Chow explained that the accused
had a previous conviction in 2008 for house trespass and is
currently serving a five-year jail term at Kajang prison for rape.

The accused, who was a mechanic, faces other charges of
committing a similar offence and also sex offences.

In the second case, judge Indra Hj Ayub jailed 21-year-old
Mohd Firdaus Jafri for seven years and ordered the latter to be
whipped thrice for robbing the security guard of a 24-hour
convenience outlet of RM104 cash and five boxes of cigarettes at
a commercial centre in Sepanggar on October 14.

Click to enlarge

The facts of the case stated that the victim, who was on duty
to do a report on CCTV that day, saw the accused on the CCTV
system pointing a weapon at a worker of the outlet.

The victim then went there but instead the accused also
pointed the same weapon at the victim's throat.

Following a police report made by the victim, the accused was
apprehended at Kampung Gentisan in Menggatal.

Both accused were convicted under Section 392 of the Penal
Code which is punishable under Section 397 of the same Code,
which carries a maximum jail of 20 years and also liable to
whipping upon conviction.

The duo were armed with cleavers measuring eight and 29 inches
respectively, when committing the offences.

Mohd Firdaus who was a first offender, was unrepresented while
his case was prosecuted by Chan Qin Yee.

The Borneo Post, Kuching, 13 November 2014, p.23

THE Home Ministry proposed a mandatory caning sentence be
imposed on agents who are found guilty of bringing in foreign
workers to Malaysia illegally.

Its minister Datuk Seri Dr Ahmad Zahid Hamidi said the caning
sentence is more effective than simply slapping fines in curbing
the overflowing entry of foreign workers.

"The proposal will be brought to the Attorney-General's
Chambers and I hope it is accepted after taking into account the
uncontrollable influx of foreign workers especially in the
various states," he said in reply to a question by Liew Chin
Tong (DAP-Kluang) in the Dewan Rakyat, here yesterday.

Ahmad Zahid said the ministry had no plans to replace caning
as the sentence has reduced the number of repeat offenders,
especially among drug traffickers.

He stressed that the caning sentence had reduced the rate of
repeat offences from 32 per cent to 7.6 per cent. "We have
no intention to replace caning with a lesser punishment, but if
the Attorney-General's Chambers wants to change the policy, then
we are willing to accommodate the change," he said.

Earlier, Ahmad Zahid said last year, 8,481 prisoners were
sentenced to caning, of whom 2,483 were Malaysians and 5,968 were
foreign nationals. -- Bernama

Former college student Shaznee was sentenced to one and a half
years jail and seven strokes of the rotan on Sept 4 while
Redzohaan, who used to work at a snooker parlour, was handed a
two-year jail term and eight strokes of the rotan on Aug 21.

Shaznee pleaded guilty to committing gang-robbery, while armed
with a piece of wood, on one Teo Len Hoo, 61, at an internet cafe
at Plaza Usahawan Genting Klang, Setapak, Sentul here, around
6.24am on Nov 24 last year.

Teo lost RM418 in cash during the robbery where the other
robber is still at large.

Redzohaan pleaded guilty to committing gang-robbery, with two
others still at large, on one Martin Anak Iyan, 37, at a 24-hour
convenience store at Jalan Ipoh, Sentul here, around 3.30am on Jan 31.

The accused, while armed with parang, had robbed Martin of
RM300 in cash, a smartphone, and a tablet.

Shaznee and Redzohaan cried out in pain each time they were
whipped as they were held bent over a court table by a Kajang
Prison police officer.

After the sentences were carried out, Ahmad reminded the two
accused that they were lucky the court had considered their young
age at the time of the offences before sentencing them to
whippings administered at the court.

He said that whippings against convicted persons carried out
in prisons are more harsh compared to ones done before a court.

"It is hoped you are repentant after this. Crime does not
pay," he said, adding that it is hoped they do not get into
trouble with the law again.

The Malay Mail, Kuala Lumpur, 23 November 2014

Prison counsellor cautions against haphazard caning

(extracts)

Thavamany believes the judge who meted out the punishment on
the duo was doing the right thing in promoting public caning as a
strong deterrent. -- Picture by Zuraneeza Zulkifli

PETALING JAYA, Nov 23 -- Prison counsellors rarely get the
main role in a cop drama but in the country's criminal justice
system, they play a crucial part in deciding whether a punishment
is appropriate and effective for a convict.

Like many others, G. Thavamany, who has 35 years of experience
counselling convicts as a prison officer, was also shocked by the
public caning of two young men in open court on Tuesday for
committing armed robbery.

The national counselling board member said he had never
witnessed a punishment meted out in such a manner.

"In my experience, the judge would ensure all members of
the public leave the courtroom before the offender is
caned," he said in an interview on Thursday.

Click to enlarge

Thavamany, 62, said in juvenile cases, the decision to cane is
not made by the judge alone but it's made after the opinion of
court advisers have been weighed.

"The role of the counsellor is to interview the offender
and decipher whether there is a need for caning.

"Caning is only meted based on the severity of the case
as well as the offender's character and attitude."

[...]

Last Tuesday, Mohamed Shaznee Jahn Mohamed Yasin, 19, and
Redzohaan Abdullah, 20, received seven and eight strokes of rotan
respectively before an audience of prison officers, a medical
doctor, and members of the public.

Mohamed Shaznee and Redzohaan were also sentenced to 18 months
and 24 months jail, respectively.

Although the jury is out on whether public caning should be
practiced, criminal lawyer S. Selvam told Malay Mail on Friday
that it should be encouraged in the public's interest.

"Criminal lawyers see it from a different perspective ...
we see the prison as a university of crime, where the
masterminding of major crime actually takes place. An inmate who
enters prison for stealing chicken may come out wanting to commit
ATM robberies."

He believed Judge Ahmad Bache who meted out the punishment on
the duo was doing the right thing in promoting public caning as a
strong deterrent.

Free Malaysia Today, 24 November 2014

Accused's lawyer defends public caning

However, another lawyer says the judge, the prosecution and
the defence counsel have erred.

By Amin Khairuddin

Click to enlarge

KUALA LUMPUR: The public whipping conducted in the Kajang
Sessions Court on November 18 has caused quite a stir among the
general public as well as legal experts. Many have said they were
shocked that the punishment was carried out in full view of the
public, but some believe that justice was served.

The latter group includes Samantha Chong, the lawyer who
represented one of the accused, Redzohaan Abdullah.

As a response to an article and readers' comments on the
issue, Chong has written to FMT to defend the public caning.

She said the caning was part of the deal in her plea bargain
with the prosecution and that she was the one who applied for the
punishment to be carried out in court to ensure that a light cane
would be used.

"Whipping of youthful offenders in court is quite common
in Malaysia," she said, adding that she had witnessed six
cases in her five years of legal practice.

"As Redzohaan was a youthful offender, I had applied to
the court that caning should be done according to sections 288
and 293 of the Criminal Procedure Code (CPC), i.e . inflicted in
the way of school discipline with a light rattan."

She pointed out that Section 293 (1) (c) says, "When any
youthful offender is convicted before any criminal court of any
offence punishable by fine or imprisonment, the court may,
instead of awarding any term of imprisonment in default of
payment of the fine or passing a sentence of imprisonment order
the offender, if a male, to be whipped with not more than ten
strokes of a light cane or rattan within the court premises and
in the presence, if he (the judge) desires to be present, of the
parent or guardian of that offender."

Chong said the purpose of having the caning administered in
court was not to shame the accused, but to ensure that it was
conducted according to the provisions of the law, that a light
rattan was indeed used, and that a medical officer would be present.

"Had the whipping been too much for the accused
physically, the court would have terminated it on the medical
officer's advice," she said. "Both the accused were
whipped with their clothes on, unlike the whipping in the prison."

Explicit errors

However, criminal lawyer S N Nair notes that, amongst other
things, there are two explicit errors in the way the sentences
were ordered and executed.

Nair pointed out that there's no mention of whipping in the
main body of Section 293 of the CPC.

"It is evident and explicit that this section envisages
punishment for youthful offenders for offences that are not of a
serious nature, such as theft of a motor vehicle (covered under
Section 379A), where the sentence is not less than one year's
jail and not more than seven years' jail and a fine," he said.

"Whipping is made an additional and mandatory punishment
in offences that are serious and aggravated, such as gang robbery
and armed robbery (Sections 395 and 397 Penal Code). Armed
robbery was the very offence the two offenders were charged with.

"By this very fact, the learned lawyer, the learned
prosecutor and the learned judge have all erred in law in
invoking Sections 293 and 288 (4) for imposing the punishment of
whipping with a 'light cane'.

"To make matters worse, the sentence of caning in Section
293 (1) (c) is an alternate sentence, that is, caning instead of
a fine or imprisonment. Yet, the two offenders, in addition to
being imprisoned, were caned as well.

"This is gross injustice.

"In any event, in allowing the public to witness the
caning, all parties have again erred as Section 293 (1) (c)
states that witnesses who are allowed to be present are the judge
(optional) and the parents or guardians only."

Nair also noted that Section 293 (1) (c) nowhere states that
the whipping to be carried out is "public" whipping.

"I am made to understand from the FMT news report that
the whipping was indeed publicly carried out in open court in the
presence of members of the public sitting in the gallery." he said.

"I wish to reiterate that public whipping is a big 'no
no' in our laws."

He pointed out that the accused were not charged under the
Child Act, but were charged as adults and ought to be punished as adults.

"However, as they were youthful offenders and perhaps
first offenders, a lower term of imprisonment and fewer strokes,
to be executed in the recesses of prison, would have been proper
and mitigating in law," he said.

"Even if there was plea bargaining, I am of the opinion
that the learned judge is bound by the law (CPC) and given the
seriousness of the offences, which is of an aggravated nature
where whipping is mandatory, the sentencing under Section 293 CPC
is clearly untenable in law and is hence erroneous," he said.

"It is not that I am being cruel nor that I advocate
whipping as a mode of punishment. In fact, I am against whipping
but am merely highlighting the precepts of the law as it stands.
Unless Parliament amends the law, judges must strictly abide by
the law as it stands. Victims have rights too.

"Again, I believe that all parties here, such as the
learned judge, the learned prosecutor and the learned lawyer, may
have innocently misapplied the Section 293 of the CPC in this
plea bargaining."